The annual Art. 146, UCMJ Code Committee public meeting will be held Mar. 6, 2012 at 10:00 am at the CAAF Courtroom, see announcement here.

Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012.  That decision has particular resonance in light of the Supreme Court’s opinion in Kennedy v. Louisiana and its aftermath.

In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Supreme Court held that death isn’t a constitutionally permissible punishment for rape of a child.  Then, in an episode in which CAAFlog played a role, the Supreme Court revisited its decision because it had overlooked that the National Defense Authorization Act for Fiscal Year 2006 had authorized the death penalty for rape of a child, belying the opinion’s claim that there was no federal statute allowing rape of a child to be punished by death.  As a result, the Supremes modified the original Kennedy opinion while the five justices in the majority issued a statement reserving judgment on the constitutionality of death for rape of a child as a military offense:  Read more »

If you ever find yourself on Jeopardy! and hear Alex Trebek say, “The reason the UCMJ’s sodomy provision was not repealed in 2011,” the correct response is:  “What is bestiality?”  Allow me to explain.

We previously noted the changes that the National Defense Authorization Act made to the UCMJ.  But that statute is also notable for a change that it doesn’t make.

The Senate’s version of the DOD Authorization Act would have repealed Article 125, which criminalizes sodomy.  The revised version of Article 120 defines “sexual act” to include contact between the penis and not only the vulva, but also the anus or mouth.  As a result, what used to be (and still is) forcible sodomy under Article 125 is also covered by Article 120.  But Article 125 covered (and still does) another offense, as well:  bestiality.  And that offense isn’t covered by Article 120.  A strange coalition emerged to oppose the repeal of Article 125 due to concern over bestiality.  The conference committee report suscintly summarizes the outcome: 

The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy.

The House bill contained no similar provision.

The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).

157 Cong. Rec. H 8583 (daily ed. Dec. 12, 2011). Read more »

The National Defense Authorization Act for Fiscal Year 2012, which President Obama signed on New Year’s Eve, includes amendments to the UCMJ.  [The complete text of the UCMJ as amended is available here.]

The statute amended four UCMJ articles and created two new ones — though the amendments to two articles (Articles 43 and 118) were merely conforming amendments.

The statute fixed one clerical error while creating another.   Section 542 of the statute fixed a misspelling in Article 47, amending Article 47(A) “by striking ‘subpenaed’ both places it appears and inserting ‘subpoenaed’.”  But section 541 of the statute, in enacting a new Article 120(f), referred to  ”the Rules for Court-Martial” rather than “the Rules for Courts-Martial.”  Perhaps some future DOD Authorization Act will include a technical amendment fixing that mistake.

As previously noted, one section of the statute (section 542) amends Article 47 to allow subpoenas duces tecum to be issued for Article 32 investigations.  This portion of the statute is now in effect. But the most important UCMJ change included in the statute is the amendment of Article 120 and creation of two new UCMJ articles dealing with sex offenses.

It wouldn’t be accurate to say that the statute repeals the 2006 version of Article 120, since that will remain in effect for offenses committed between 1 October 2007 and 27 June 2012.  But for acts committed from 28 June 2012 on, Article 120 will be different.

Before the 2006 amendment (Pub. L. No. 109-163, § 552, 119 Stat. 3136,  3257) , Article 120 was a 196-word statute covering rape and what was then known as “carnal knowledge.”  The portion dealing with rape was only 50 words:

(a)  Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

. . . .

(c)  Penetration, however slight, is sufficient to complete either of these offenses.

The 2006 amended version ballooned to 2,830 words.  It covered rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact, abusive sexual contact with a child, indecent liberty with a child, indecent act, forcible pandering, wrongful sexual contact, and indecent exposure.  One military judge famously likened the revised Article 120 to what 100 monkeys at typewriters might produce.  And CAAF held that the statute “results in an unconstitutional burden shift.”  United States v. Prather, 69 M.J. 338, 340 (C.A.A.F. 2011).

The 2011 amended version of Article 120 weighs in at 1,074 words.  It covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact.  The statute creates two new UCMJ articles that are a combined 1,330 words.  The first, Article 120b, covers rape of a child, sexual assault of a child, and sexual abuse of a child.  The second, Article 120c, is titled “Other sexual misconduct” and covers indecent viewing, visual recording, or broadcasting; forcible pandering; and indecent exposure.

I plan to post a couple of thoughts about the revision to Article 120, so stay tuned to this same bat channel.

As the Hill reports here, President Obama today signed the National Defense Authorization Act for Fiscal Year 2012, while issuing a signing statement objecting to detention policy provisions in the statute.

As a result of the President’s signature, starting tomorrow, subpoenas duces tecum can be issued to obtain evidence for Article 32 investigations.  And 180 days from now, a new version of Article 120 will come into effect, along with a new Article 120b dealing with rape and sexual assault of a child and a new Article 120c dealing with other sex offenses.  Time permitting, I’ll post  more about the changes to Article 120 over the extended weekend.

Books could (and probably will) be written about provisions in the FY2012 National Defense Authorization Act that didn’t survive the conference committee. But the same can be said about those provisions that did make the cut.

Over at Lawfare Blog, they’re writing extensively about the detention provisions. Ben Wittes provides a quick and dirty rundown. Also, see this post to review only the detention provisions.

The new, new Article 120, which would give us Art. 120: Rape and sexual assault generally; Art. 120a: Stalking (pre-existing); Art. 120b: Rape and sexual assault of a child; and Art. 120c: Other sexual misconduct. I’ve cut the relevant section out of the conference report and provide it as a pdf here.

Finally, Article 47 (Refusal to appear or testify) would be expanded to included the case of a subpoena duces tecum for an Article 32 investigation.

Of course, this all assumes the conference report is adopted by both houses, and it survives the veto threat.

Here’s a link to a new McClatchy article on the amendments to Article 120 contained in the conference committee’s version of the National Defense Authorization Act for Fiscal Year 2012.  Of course, the bill may be vetoed as a result of disagreement between the White House and Congress over detetainee policy matters.

I’ve been watching, with great interest, developments regarding proposed Mil. R. Evid. 514: Victim Advocate – Victim Privilege (see: here and here). Until now, I beleived the proposed Mil. R. Evid. was to be the result of a legislative requirement. Congress, it seems, feels differently.

The conference report on the FY12 NDAA is available here. The following language is found on page 1425 of the pdf:

Privilege in cases arising under Uniform Code of Military Justice against disclosure of communications between sexual assault victims and sexual assault response coordinators, victim advocates, and certain other persons

The House bill contained a provision (sec. 584) that would add a new Article 140a to the Uniform Code of Military Justice establishing a privilege against disclosure of communications between a person who is a victim of a sexual assault and a Sexual Assault Response Coordinator (SARC), a Sexual Assault Victim Advocate, and personnel staffing the Department of Defense (DOD) Safe Helpline or successor operation.

The Senate amendment contained a provision (sec. 564) that would require the President to establish in the Manual for Courts-Martial (MCM) an evidentiary privilege against disclosure of communications to similar effect.

The House and the Senate recede. Neither provision is included in the conference report.

The conferees note that the DOD has indicated that a new Executive Order that would amend the MCM by adding a proposed new Military Rule of Evidence 514 Victim Advocate Privilege has completed all review within the Office of Management and Budget and is now with the President for review and approval. Additionally, DOD has amended its controlling regulations to ensure that the privilege against disclosure applies to communications with a SARC whenever their duties and responsibilities involve victim advocate functions. Once this change to the MCM is signed and implemented, the conferees believe that it accomplishes the objective of ensuring privileged communications for sexual assault victims.

Without the legislative requirement, I continue to wonder (as I did in this comment) about the notice and comment period for this new rule:

The 2009 JSC Annual Review of proposed MCM amendments includes the MRE 514 language. Link here. At the top of the document it states:

JSC 2009 Annual Review Package of Proposed Amendments to the Manual for Courts-Martial by Executive Order. Initially Published in the Federal Register on September 17, 2009.

However, the 17 Sep 2009 Federal Register notice contains no mention of MRE 514. Link here. 

Considering the amendments in the 19 October 2011 notice are supposed to be stylistic, I wonder if we’re missing a notice and comment period for MRE 514?

A while back I noted the Federal Register notice of proposed stylistic changes to the Military Rules of Evidence. That notice includes Mil. R. Evid. 514: Victim Advocate – Victim Privilege. I’ve been curious about the genesis of this rule, especially since I could find no notice of proposed rulemaking.

This morning I figured it out. The privilege is (will likely be) required by the 2012 NDAA. While the bill is in conference to work out differences between the House and Senate versions, the privilege appears in both (so I expect it will survive).

Read more »

Only have a couple minutes so I’ll share this Amendment to the current 2012 Authorization Act with MilJus ramifications.  The bill amends 18 U.S.C. 926B and 926C, which deal with carrying of concealed weapons by law enforcement officers and retired law enforcement officers.  Here’s the language proposed by Senator Leahy in context of the actual Section 926B:

(c) As used in this section, the term “qualified law enforcement officer” means an employee of a governmental agency who—

(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice) . . . .

926C has a similar additions to the definition of retired law enforcement officer.  Was this really an issue?  Does this raise posse comitatus issues–which I realize is just another statute, but still an issue unless addressed. 

I can’t imagine this is not in support of or an attempt to counter the Sen. Ayotte amendments (see S7716-17) or others amendments dealing with turnover of detainees to the military or interrogation techniques, because Sen. Leahy opposes almost all of those.

A reader has brought to our attention that Representative Susan Davis has re-introduced the “Equal Justice for our Military Act.” The text of the bill (H.R. 3133) is not yet available on Thomas, but in previous iterations, the bill sought to give the Supreme Court jurisdiction over cases in which CAAF declines to grant review or, in extraordinary writ cases, declines to grant relief. h/t nbm3

As reported below, the White House announced yesterday, here, nominated Kevin A. Ohlson to be a judge on the United States Court of Appeals for the Armed Forces.  Mr. Ohlson’s bio is contained on the announcement page.  He is currently serving as the Chief of the newly created Professional Misconduct Review Unit in the Department of Justice.  His nomination, if confirmed, will add a fourth former judge advocate to the court.

I note that the page also has the nomination for Army General Counsel, who is also a former judge advocate, Brad Carsonis (“an associate professor of business law at the University of Tulsa, where he is also Director of the National Energy Policy Institute”).

H/t LTC Bobby Don

The Senate Armed Services Committee held a hearing today during which the top lawyer from each branch testified.  The video is available here. I haven’t had a chance to watch it yet — and won’t be able to for the next several days — but I hear that the Judge Advocate General of the Navy was questioned about appellate delay and the Foster case, the Judge Advocate General of the Air Force challenged a proposal to do away with three of the Air Force’s six general billets for judge advocates, and the Staff Judge Advocate to the Commandant of the Marine Corps presented a case for increased authority over his branch’s judge advocates.

h/t John Baker

This came across my email today.  Portions of the proposed bill seek to mandate referral and staffing decisions in courts-martial involving cases of sexual assault.  A well intentioned bill, but I think the offered solution has much potential for mischief, in particular Sec. 140A(b)(3), wowzer.

Here is a link to the full HR 1517, the Holley Lynn James Act, introduced on April 13, 2011.  The act’s namesake was “an Army 2nd Lieutenant . . . [that] was murdered by her husband, a Marine corporal, after a series of domestic violence instances that were not seriously addressed by the military.”  Story here. The Act also has a portion. Sec. 4, that would permit suits against the military for failure to address cases of domestic violence/assault.

Here is the military justice portion of the bill:

SEC. 3. DISPOSITION OF RAPE, SEXUAL ASSAULT OR SEXUAL HARASSMENT AND DOMESTIC VIOLENCE CASES WITHIN THE UNIFORM CODE OF MILITARY JUSTICE.

. . .

‘‘§ 940A. Art. 140A. Disposition of rape, sexual assault, sexual harassment, and domestic violence cases

‘‘(a) SPECIAL DISPOSITION.—Notwithstanding any other provision of law, there shall be special disposition for charges stemming from a sexual-related offense and charges involving an allegation of domestic violence committed by a member of the Armed Forces as follows:

‘‘(1) A case involving such charges shall automatically be referred to a general court-martial convening authority, as described in section 818 of this title (article 18).

‘‘(2) The staff judge advocate shall provide detailed billets for prosecutors in cases involving allegations of rape or sexual assault, to be filled by a field-grade officer of the Judge Advocate General’s Corps with a rank of O–4 or higher.

‘‘(3) In a case involving an accusation of rape, sexual assault, harassment, or domestic violence, the facts of the case shall be given precedence over the value to the service of the accused.

‘‘(4) In a case involving an accusation of rape, sexual assault, or harassment, the accused will not be eligible for non-judicial punishment or administrative punishment if found guilty.

‘‘(b) VICTIM’S RIGHTS.—A victim in a case involving allegations of rape, sexual assault, harassment, or domestic violence shall have rights as follows:

‘‘(1) The Secretary concerned shall provide counsel for the victim, in the same manner as counsel is provided for an accused under section 827(b) of this title (article 27), for any investigation or courts-martial proceeding relating to the case.

‘‘(2) All communications between a victim and a victim’s advocates or the victim’s counsel shall be considered privileged communications for purposes of the case and any proceedings relating to the case.

‘‘(3) A victim may appeal the decision of a general court martial in the case to the appropriate Court of Criminal Appeals under section 866 of this title (article 66).

‘‘(c) REVISION OF MANUAL FOR COURTS-MARTIAL.—The Joint Service Committee on Military Justice shall amend the Manual for Courts-Martial to reflect this section, with especially section 306 of such manual concerning disposition”

‘‘(d) PURPOSE.—The purpose of this section is to assure proper treatment of sexual assault cases in military judicial system, remove cases from chain of command that may contain both victim and accused, prevent non-judicial punishment and determination being decided in case by unqualified personnel without legal experience, considers the rights of the victim.’’.

President Obama today signed the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 into law.  The new law amends the UCMJ by expanding its contempt powers.  The newly revised UCMJ is here.  And, of course, the 2008 MCM that most of us use on a daily basis is now even more out-of-date.